Kasza v. Whitman , 325 F.3d 1178 ( 2003 )

Opinion by Circuit Judge RYMER; Concurring opinion by Circuit Judge HARLINGTON WOOD, Jr.

OPINION

RYMER, Circuit Judge.

These appeals are from the district court’s refusal on remand to award attorney’s fees in Frost v. Rumsfeld, and from its order in both Frost and Kasza v. Whitman approving redaction of a previously sealed transcript before unsealing it.¹ The facts and our conclusion with respect to applicability of the state secrets privilege are set forth in Kasza v. Browner, 133 F.3d 1159 (9th Cir.1998), and we do not repeat them. We affirm.

I

Frost argues that the district court erred in a number of respects by denying her request for attorney’s fees. However, since the district court’s original decision and our remand, the Supreme Court rejected the catalyst theory upon which Frost’s application was predicated in Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep’t of Health and Human Res., 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). It held that there must be a judicial imprimatur which alters the parties’ legal relationship in order for a party to be a prevailing party for purposes of an award of attorney’s fees. We have subsequently held that Buckhannon’s rationale applies to similar fee-shifting statutes. See Bennett v. Yoshina, 259 F.3d 1097 (9th Cir.2001); Perez-Arellano v. Smith, 279 F.3d 791 (9th Cir.2002). Although the fee-shifting provision of the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6972(e), is differently phrased in that it provides for an award “to the prevailing or substantially prevailing party,” Frost is not a “prevailing party” (and thus cannot be a substantially “prevailing party”) because she did not gain by judgment or consent decree a material alteration of the legal relationship of the parties.² Accordingly, she does not qualify for attorney’s fees.

II

Frost, Kasza and DR Partners submit that the district court’s redaction order is infirm for several reasons.³ First, they argue that the court misinterpreted the scope of our mandate on remand by failing to consider whether it should unseal “related materials” as well as the transcript of the June 20, 1995 hearing. We do not agree. Kasza’s argument on the original appeal focused on the transcript, as did her argument on remand. She did not ask the district court to clarify its ruling, which was limited to the transcript, or to reconsider it. In these circumstances we cannot fault the district court for its approach.

Kasza further contends that the court did not engage in a reasoned evaluation of the government’s proposed redactions. Again, we disagree. The court was fully familiar with the history of this litigation, including classified declarations that explained the mosaic theory of classification and its relationship to these cases and to the matters at issue in the June 20 hearing. We previously upheld the district court’s finding that an Air Force manual which Kasza said was publicly available was classified. Kasza, 133 F.3d at 1170 n. 9. On remand, the court compared the proposed redacted version of the transcript with the unredacted version, and found that the redactions were consistent and classified. Even though some of the redactions may seem innocuous when viewed in isolation, we cannot say that the court abused its discretion in applying the mosaic theory or in redacting the transcript. See Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir.1995) (reviewing denial of access to records for abuse of discretion).

Kasza’s reliance on Freedom of Information Act cases such as Wiener v. FBI, 943 F.2d 972 (9th Cir.1991), for the proposition that the district court should have made specific findings with respect to each particular redaction is misplaced, because we have already determined that the state secrets privilege applies. Nor was the basis upon which the government requested, and the district court approved, redaction inadequate. Declarations in the record offer sufficient support. As we explained in our prior opinion, based on our in camera review of classified declarations, we held “that the scope of the privilege asserted by the Air Force was not overbroad.” Kasza, 133 F.3d at 1170.

Finally, Kasza maintains that she should have been heard on the merits of the proposed redactions. She was, of course, given the opportunity to argue whether the state secrets privilege applies at all. However, having lost on that issue and her case having been dismissed on account of it, her interest in discrete redactions from the transcript is remote and was adequately considered through the briefing that was submitted.

Finally, Kasza and DR Partners note that the public’s First Amendment interest in access to court records may be overcome only by an overriding interest that closure is essential and narrowly tailored. See, e.g., Press-Enter. Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986); Associated Press v. United States Dist. Court, 705 F.2d 1143 (9th Cir.1983). However, we have already accepted the government’s position that disclosure of protected information in these cases risks significant harm to national security. Kasza, 133 F.3d at 1170. Public release of redacted material is an appropriate response. This leaves only the question whether the court acted within its discretion by unsealing only the redacted version of the June 20 transcript. We believe that it did.

AFFIRMED.

1 . DR Partners dba Las Vegas Review-Journal intervened on appeal and also filed an amicus brief in support of the position taken by Frost and Kasza on redaction.

2 . Neither did Frost prevail as the result of "a legally enforceable settlement agreement against the defendant.” Barrios v. Calif. Interscholastic Fed’n, 277 F.3d 1128, 1134 & n. 5 (9th Cir.2002).

3 . We will refer to these parties collectively as "Kasza” unless context otherwise requires.